"In Case No. 03C40502, convictions for
fourth-degree assault vacated; remanded with instructions to enter judgment of
conviction for one count of fourth-degree assault in Case No. 03C40502,
reflecting that defendant was convicted on both charged theories and for
resentencing; otherwise affirmed."

Yong, 206 Or App at 547.� On remand, however,
the trial court entered two felony assault convictions.� The judgment for Count
1 contained the notation, "Count 2 merges w/ Ct 1 for purposes of
sentencing."� The judgment for Count 2 contained the notation, "This
count merges with Ct 1 for purposes of sentencing."� Defendant filed this
appeal, arguing that "merge[r] * * * for purposes of sentencing" is a
determination that a defendant must serve concurrent sentences on multiple
convictions.� State v. McCloud, 177 Or App 511, 518, 34 P3d 699 (2001), vac'd
on other grounds, 334 Or 491, 52 P3d 1056 (2002).�

After defendant filed his opening
brief, but before the state filed a response, the state moved for a corrected
judgment, acknowledging that the trial court's response to this court's remand
did "not specifically state that Counts 1 and 2 merge for purposes of
conviction."� The court subsequently altered the judgment disposing of
Count 1 by noting:

"Defendant is convicted of one count of
Assault 4 based on alternative theories:� previously convicted of assaulting
the same victim * * * and assault committed in the immediate presence and
witnessed by the minor child of [victim]."�

However, the court left in place the existing judgment
disposing of Count 2, still notated, "This count merges with Ct 1 for purposes
of sentencing."� Defendant now argues that the two judgments are
susceptible to an erroneous interpretation, that is, that there are still two
convictions for fourth-degree assault.� He urges us to remand once again for
resentencing.� The state responds that the judgments, read together and in
conjunction with our earlier opinion, are unambiguous, and that no remand is
necessary.�

We agree with the state that a
careful examination of all of the documents, plus our earlier opinion, would
probably resolve any ambiguity.� Exercising an abundance of prudence, however,
we now vacate the judgments of conviction for Count 1 and Count 2 and remand
with instructions to enter one judgment for a single conviction of fourth-degree
assault, ORS 163.160.� That judgment should indicate that Count 1 and Count 2
result in a single conviction and sentence.� Any documents stating or implying that
conviction on Count 1 and Count 2 are separate convictions should be
conspicuously amended to show that the convictions are vacated and replaced by
a single conviction and sentence.

Defendant also argues that the court
erred in imposing consecutive sentences for unlawful use of a weapon (Count 4)
and fourth-degree assault (Counts 1 and 2) based on facts found by the court and
not by a jury.� That argument is defeated by Oregon v. Ice, 555 US ___,
129 S Ct 711, 172 L Ed 2d 517 (2009).

Convictions for fourth-degree assault
(Count 1 and Count 2) vacated; remanded with instructions to enter one conviction
for fourth-degree assault and for resentencing; otherwise affirmed.

1.ORS
161.067(1) provides, in part, that, "[w]hen the same conduct or criminal
episode violates two or more statutory provisions and each provision requires
proof of an element that the others do not, there are as many separately
punishable offenses as there are separate statutory violations."